24 F. 399 -

24 F1d 399

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Case Text

THE G. F · .BROWN.

399

trips, where a pilot is always necessary, in fact required by the laws of the United States, it is to the interest of the boat and the pilots that contracts shall be made for stated terms of reasonable duration, and, as such contracts are lawful, it would seem that both parties should be bound thereby; and if the boat is bound a lien necessarily results. To deny a lien for the enforcement of a contract beyond the voyagas actually made, would be, in most instances, to bind one party to the contract, and not the other. Decrees should be entered in both cases for the libelants.

Shot, 22 FED. REP. 123, and The Arctic, Id. 126, followed as to the priority of the various liens in this case.

In Admiralty. Wilcox, Adams et Macklin, for the Dry Dock Co. and the Hartford N. Y. Transp. Co. N. R. Hart, for George Lord, Jr. Charles Murray, for L'Hommedieu and Palmer & Duff. SHIPMAN, J. The proctors in these cases have presented the questions in regard to the apportionment of the fund in court among the Henors upon the facts as they are shown in the libels and the accompanying papers, without any other proofs. The G. F. Brown appears to have been a small coasting schooner, owned in Connecticnt, and making short and frequent trips which could hardly be called voyages. George Lord, Jr., was hired as mate of said vessel for an indefinite time at $25 per month, and on January 7, 1885, there was due to him, as such mate, for two months and 18 days' services previous thereto, the sum of $56.15. In September, 1884, Palmer & Duff, of Greenwich, Connecticut, furnished, at said Greenwich, materials and repairs upon said vessel,

400

FEDERAL REPORTER.

for which. $123.91 are now due, but never, sa far as appears from their libel, filed a. certificate of lien in any town clerk's office as reo quired by the Connecticut statute in regard to liens upon vessels. Said statute provides as follows: "No such claim" (for materials furnished, or services rendered in the construction or repairs of a vessel) "shalll'emain a lien on such vessel or its appurtenances more than ten days a.fter the person performing such services, or furnishing such materials, has ceased so to do, unless he shall sign and lodge with the town clerk of the town where such vessel was so constructed or repaired a certificate in writing," describing, among other things, the vessel and the amount claimed as a lien thereon. On December 6, 1884, while said schooner was lying at Elizabethport, New Jersey, laden with a cargo for Stamford, Connecticut, she was damaged, and was repaired by the Dry Dock & Transportation Company, whose hill for said repairs, wholly unpaid, is $686.87. On December 27, 1884, and as SOOD. as the repairs were finished, she started for Stamford, and, at the request of her captain, was towed by the steam-tug Ceres from Elizabethport to the bay of New York, for which service $20 is due to Samuel L'Hommedieu· and another, owners of the tug. She then proceeded to Stamford, where she was libeled on December 29, 1884, by the Dry Dock & Transportation Company. Subsequently she was libeled by the various parties before mentioned, and by the Hartford & New York Transports.tion Company, which claimed salvage, but which makes no claim to the fund in court. Default having been made upon the return of the first process, the amount due to the libelant was ascertained, and the vessel was sold for $775, a sum less than the debt and costs of the Dry Dock Company. An assigned claim for seaman's wages has also been filed in court. The qnestions in the case have been, in substance, the subject of careful consideration by Judge Addison BROWN in TIle J. W. Tucker, 20 FED. REP. 129; The Grapeshot, 22 FED. REP. 123, and The Arctic, ld. 126, and his conclusions, so far as they relate to the facts in the case, are followed. Let the fund in court be divided as follows: (1) By the payment of the bill of costs, as taxed, of the Dry Dock & Transportation Company. (2) By the payment to George Lord, Jr., of his wages, $56.15, and so much of his costs as are disbursements. (3) The remaining part of the fund should be divided pro rata between the Dry Dock & Transportation Company, whose bill amounts to $686.86, and Samuel L'Hommedieu, to whose bill of $20 so much of the costs as are disbursements should be added. Palmer & Duff have neither a maritime nor a statutory lien, so far as is disclosed by the papers now in the case. 'l'he Albany, 4 Dill. 439; The Arctic, cited supra.

MERCARTNEY

V.

CRITTENDEN.

401

MERCARTNEY v. CRITTENDEN and others.

(Oircuit Oourt, D. Oalifornia. July

]]Q,uITY PRACTICE-DOCKET FEE-BEV. ST 28,1885.)

To constitute" a final hearing in equity or admiralty," within tbe meaning of section 824, Hev. St., there must be a hearing of the cause on its merits; that is, a submission of it to the court, in such shape as the parties choose to give It, with a VIeW to a determination whether the plaintiff or libelant has made out the case stated by him in his bill or libel, on the ground for the permanent relief which his pleading seeks, on such proof as the parties place before tbe court, be ,the case one of pro confes,o on bill, or libel and answer, or pleadings alone, or pleadings and proofs. Wooster v. Handy, 23 FED. BEP. 50, followed.

§ 824-FINAL BEARING.

In Equity. Appeal from clerk's taxation of costs. D. T. Sullivan, for complainant. J. L. Crittenden, for defendants. SAWYER, C. J. The bill was filed September 4, 1884. Demurrer filed December 9,1884. The demurrer having been argued and submitted, it was overruled on March 2, 1885, and leave given to answer upon payment of the usual costs. On April 4.th the defendants answered fully to the merits. On May 1,1885, the court dismiloi3ed the bill without prejudice, without looking into it, on the voluntary ap- . plication of the complainant, the defendants not appearing, and not being present. The question is whether defendants are entitled to the docket fee taxable under section 824, Rev. St. on a "final hearing" in equity. The clerk allowed the item in pursuance as he construed the decision and ruling in the circuit court for the Eastern district of Tennessee in Goodyear v. Sawyer, 17 FED. REP. 3. But all the cases, including Goodyear v. Sawyer, were fully reviewed by Mr. Justice BLATCHFORD, of the supreme court, on the circuit, in Wooster v. Handy, 23 FED. REP. 50; and the ruling in Goodyear v. Sawyer, on this point, was oyerruled. The rule deduced from the cases, and adopted by Mr. Justice BLA.TCHFORD, "is that to constitute a 'final hearing in equity or admiralty,' within the meaning of section 824, there must be a hearing of the cause on its merits; that is, a submission of it to the court in such shape as the parties choose to give it, with a view to a determination whether the plaintiff or libelant has made out the case stated by him in bill or libel as the ground for the permanent reo lief which his pleading seeks, on such proofs as the parties place hefore the court, be the case one of pro confesso on bill, or libel and answer, or pleadings alone, or pleadings and proofs. Nor does it detract from the force of this conclusion that what is called an interlocutory decree, as distinguished from a final decree, is often entered as the result of a decision on a final hearing." I shall adopt this conclusion as better supported by authority, as well as reason, as to the proper construction of the provision of section 824 in question. There was no replication in this case, and it was not at issue. There was no question of law submitted for con-. v.24F,no.8-26